Every year there is at least one newspaper headline about “Divorce Day”. The favourite date for that is the first or second working day in January. However, that is a bad day to choose for a number of reasons, one being cost. For example, many costs could be mitigated if our law provided for “no fault divorce” without having first to separate for at least two years. In addition, there is a mounting body of evidence that relationship support on separation pays dividends. Finally, there are moves afoot to remove some of the difficulties inherent in our discretionary system for sorting out finances on separation.

Should our laws change when society does, or should society be led by law reform? This article highlights the current law: where it came from and where it might go so that it can better reflect modern society.

“Divorce” includes the dissolution of civil partnerships.

Background law and facts on divorce

The Divorce Reform Act 1969 (passed at the end of the ‘Swinging Sixties’), became law at a very different time in society. It was seen as radical as for the first time, a petitioner did not have to prove fault on the part of their spouse, but then had to wait for at least two years of separation. The Matrimonial Causes Act 1973 used the same legal test. This Act is one of a raft of 1970s legislation, including the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Inheritance (Provision for Family and Dependants) Act 1975. Society was changing immensely.

In 1990, the Law Commission recognised six problems with the fault based divorce rules, including that they provoked unnecessary hostility and made things worse for children by exacerbating parental conflict. Nearly thirty years later, we are still saying the same things.

The Commission’s report led to the Family Law Act 1996 making provision for no fault divorce, but the relevant section never came into force. Richard Bacon MP spearheaded the No Fault Divorce Bill which received its first reading in Parliament on 13th October 2015; but nothing came of it. Resolution, the association for specialist family lawyers, has recently increased its focus on the campaign to bring in “no fault divorce”.

In 2016, there were 106,959 divorces of opposite sex couples (up 5.8% from 2015)[1], and 112 divorces of same-sex couples. Same sex couples cannot divorce for adultery. Since the 1970s, so-called “unreasonable behaviour” has been the most common allegation for opposite-sex couples divorcing.

All family lawyers have experience of telling a client that unless the couple have been separated for at least two years, they will have to blame the other for the breakdown of the marriage. The first reaction is usually disbelief. Then they ask for a way round this problem. Family lawyers can only advise clients that, in order to divorce more quickly, they have to rely on either adultery or the other spouse’s bad behaviour. Many will choose to make such an allegation, often following private agreement with the other spouse. The responding spouse does not have to admit the behaviour allegations are true, just not to defend.

The 2017 report “Finding Fault? Divorce Law and Practice in England and Wales”[2] supported the call for a change. “The study shows that we already have something tantamount to immediate unilateral divorce ‘on demand’ but masked by an often painful and sometimes destructive legal ritual with no obvious benefits for the parties or the state”.

For many couples, the reality is that they have grown apart, and “nobody’s perfect”.[3]

Current Press interest

Two recent divorce cases demonstrate the current problem.

The first is the 2016 petition for divorce of Mrs Owens, who has been married to Mr Owens for almost 39 years and have adult children. Mr Owens does not want a divorce. In his acknowledgement of service, he said he would defend and that the marriage had not irretrievably broken down. At first instance, Judge Tolson agreed with Mr Owen and summarised his judgement:

“In reality I find that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy. I would not have found unreasonable behaviour on the wife’s pleaded case. As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that.”[4]

Having lost twice in the lower courts, Mrs Owens’ appeal to the Supreme Court is set for May 2018. If she fails again, she will have to wait until February 2020 to file for divorce based on the completion of five years of separation.

The second story concerns the former pop singer Louise Redknapp and her ex-footballer husband Jamie Redknapp. They separated in July 2017, and allowing for the usual time to process the divorce papers, their case came before the court for decree nisi to be pronounced on 29th December 2017. The details also made for sad reading.

Both spouses have been clear about their commitment to being good parents to their young children, and appear to be on friendly terms. Mrs Redknapp had to cite her husband’s unreasonable behaviour to prove that the marriage had irretrievably broken down. However, we cannot know whether if they had been able to ask for a “no fault” divorce, they would have chosen this active demonstration of their wish not to behave in a hostile way after their divorce.

The costs of divorce

It is estimated that family breakdown costs tax payers £48 billion each year[5]. Those costs include increased reliance on state benefits, work day losses due to stress, time off work to deal with lawyers, divorce papers, etc.

This does not include the social cost of separation and divorce. Lawyers, therapists and counsellors, GPs and social workers can tell stories (anonymised of course) of the damage that can be caused by one spouse having to blame the other in order to get a divorce. Or of having to wait for at least two years to finalise both the divorce and the financial settlement.

The Government is aware of this issue and its cost. In 2010, then Prime Minister David Cameron announced £30 million for relationship support over the five years to 2016. The fiscally driven decision stemmed from the belief that ‘children who grow up in strong, stable families with quality relationships in the home, stand the best chance of a positive future’. Part of that funding went, via the Department of Education, into supporting couples, aiming to:

Improve attitudes towards relationship support services;

Change attitudes towards accessing relationship support services in the future;

Increase awareness of, and use of, relationship strengthening behaviours; and

Improve the well-being of parents and their children.

Charities specialising in relationships, including Relate and Tavistock Relationships[6], devised new programmes to further these aims.

The subsequent Tavistock Institute report estimated that for every £1 invested in support for couples, £11.50 of expenditure was saved[7].

However in 2017, the former Conservative Party leader Iain Duncan Smith spoke of his concern over the Government’s intention to slash the £10 million then set aside for relationship support.

Will the law soon be reformed to include no fault divorce without couples waiting for two years?

There is outspoken support for this reform. Led by the President of the Supreme Court, Baroness Brenda Hale, and supported by the President of the Family Division Sir James Munby and the former Lord Chancellor Lord Charles Falconer, the campaign is gathering force. Recently, The Times newspaper has thrown its weight in favour [8].

It is unlikely that there will be legislation any time soon. There are strongly held views for and against such reform. The “Finding Fault?[9]” research did not support the view that such reform would make divorce easier. Specifically, the summary states “Fault does not protect marriage or deter divorce. The study found no empirical support for the argument that is sometimes made that fault may protect marriage because having to give a reason makes people think twice about separating”.

A bill to reform the law so as to allow no fault divorce would not have a straightforward passage. Since the Brexit referendum in June 2016, and particularly since the triggering of Article 50 in March 2017, there is very little parliamentary time for proper consideration of such a bill.

Other changes aimed at cutting legal costs

Following consultation launched by the Family Procedure Rule Committee, FPR 2010, PD 36D was issued. This led to the first online litigant-friendly divorce petition [10], which is easy to use but misleading in encouraging petitioners to tick a box to say that they do not want a court to deal with financial matters; whereas all family lawyers know that the financial links that arise on marriage survive divorce and death, unless such a court order dismissing these rights is made[11] .

The legal spend on divorce is only a fraction of money spent on separating the financial links made on marriage. The current problems are many, not least that we cannot give any reliable guidance with any precision. Judicial powers are to be exercised in a discretionary manner. In addition to his views on divorce, Lord Falconer has openly called the problem of lack of understanding and predictability a “lottery”[12]. Failure of understanding leads to more litigation of disputes.

The website “Sorting Out Finances on Divorce” provides an overview of the law and what orders can be made together with detailed discussions of difficult areas including housing, and maintenance and worked examples and FAQs [13]. The Family Justice Council is right behind the wish to de-mystify the law relating to financial claims on divorce, and practitioners regularly refer to “Guidance on “Financial Remedies” on Divorce [14]“.

The President has promoted a new process of administratively de-linking financial proceedings from divorce proceedings[15]. In pursuit of his proposals on 1st December 2017, he released a circular about Financial Remedies Courts. He intends there to be specialist courts, under a lead judge for each area, with hearings at the hub for each region and there will also be some specialist Financial Remedies Hearing Centres. These courts will all function “quite separately from the Regional Divorce Centres: initially in accordance with the current principles regulating “administrative de-linking”, pending full “legal de-linking”[16] . Pilot schemes are starting in three courts in February 2018.

Avoiding Court and the role of mediation

Can couples avoid the courts altogether? Following cuts imposed by the Ministry of Justice, the court system is in crisis due to underfunding and there is a shortage of judges who specialise in this work area. But our laws still state the need for a judge to sever the financial links on divorce, or to make other orders if some or all of those links are to remain in a limited form.

Mediation is promoted heavily by the rules as a route to resolve disputes. Mediators will help a couple decide what facts will be established to prove the breakdown of their marriage, and will often discuss the drafting of the necessary allegations so that both may agree what is to be said. In addition to this consideration of divorce, mediators usually spend a considerable amount of time working with the couple to make good arrangements for their children (if any) and their future financial situations. Every person in mediation should take legal advice. If they can resolve their financial plans together, they must file at court the necessary paperwork to get a court order.

Mediation cannot provide the end of the process, but it can assist at the beginning and in the middle. It is a pity that mediation is rarely provided on legal aid (nor is legal aid available for divorce or financial disputes). Now that would be cost effective.

Timing of divorce

If there is any merit in there being a post-Christmas so-called “Divorce Day”, it would probably fall in mid-April. Clients could start their divorce by filing an application, at a time of their choosing, based on “no fault”. This would give the couple time to agree (perhaps with relationship support) on the way forward to divorce and to sort out their finances, so that they can make full use of the tax benefits of a new financial year.

[1] Office for National Statistics (ONS) “Divorces in England and Wales: 2016”